Federal Legal Corner: NSPS Can’t Impose New Probationary Period

The MSPB held that an employee could not be required to complete a new NSPS probationary period in Dodson v. Navy, 2009 MSPB 113 (6/17/09). The appellant had been terminated because of her work performance and conduct during her NSPS probationary period. Without holding a hearing, the AJ dimissed the case for lack of jurisdiction as probationary employees have no appeal rights.

However, the Board reversed, noting that the appellant had been reinstated from a certificate of eligibles. Although the appellant did not claim that she had one year of current continuous service when terminated, she argued that she had already completed a probationary period and should not be required to serve a new probationary period when appointed to a position under NSPS. The Board found that the SF-50 documenting her prior appointment indicated that she had completed a probationary period at the FDIC.

DoD contended that it had authority to impose a new probationary period under NSPS, citing 5 USC 9901-9902 and its implementing issuances. The Board countered by stating that Congress had already amended 5 USC 9902, effective January 28, 2008, prior to the appellant’s appointment, that took away the agency’s authority to waive the provisions of Title 5, U.S.C., including chapter 75 covering adverse actions. As the NSPS regulations appear to limit the appellant’s adverse action appeal rights, the Board held that they can’t be given effect.

Because the OPM regulations provide applicable guidance in 5 CFR Part 315, the Board noted that the one-year probationary period for an employee who is reinstated is waived if the "employee completed a probationary period or served with competitive status under an appointment which did not require a probationary period." 5 CFR 315.801(a)(2). Nevertheless, the Board determined that the record was not fully developed and remanded the case for further adjudication consistent with its opinion, including the option of a jurisdictional hearing if there are facts in dispute.

* This information is provided by the attorneys at Passman & Kaplan, P.C., a law firm dedicated to the representation of federal employees worldwide. For more information on Passman & Kaplan, P.C., go to http://www.passmanandkaplan.com .

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